Untitled Texas Attorney General Opinion ( 2010 )

ATTORNEY GENERAL OF TEXAS
GREG ABBOTT
May 25, 2010
The Honorable Joseph D. Brown Opinion No. GA-0778
Grayson County Criminal District Attorney
Grayson County Justice Center, Suite 116A Re: Whether a commissioners court may amend
Sherman, Texas 75090 the county budget to reduce salaries for the
county clerk's office because the clerk closed
her office temporarily for a weather-related
emergency (RQ-0834-GA)
Dear Mr. Brown:
You state that in August of2009 the Grayson County Clerk closed her office approximately
thirty minutes early and dismissed several emp loyees for that time period because of a thunderstorm
and resulting power outage in the county courthouse. 1 The Grayson County Commissioners Court,
which has implemented a forty-hour work week uniform pay policy, has refused to pay these
employees for the time that they did not work. Request Letter at 1. In connection with these facts,
you ask the following question:
May the Grayson County Commissioners Court, in the middle of a
budget year, amend the budget ofthe Grayson County Clerk to reduce
that office's salary line item in an amount equal to the pay which was
due to county clerk employees for a time period the employees did
not work at the direction of the elected county clerk because of a
weather related emergency?
Id.
Your question raises an issue addressed in attorney general opinions and in case law-the
tension between the authority of elected county officers and the commissioners court's authority as
the county's principal governing body. See Comm'rs Court o/Titus County v. Agan, 940 S.W.2d
77, 79 (Tex. 1997); see also Anderson v. Wood, 152 S.W.2d 1084, 1085 (Tex. 1941) (discussing
commissioners court's authority to contract for county). Elected county officers have a "sphere of
authority" within which they may manage their offices without interference from the commissioners
court. See Pritchard & Abbott v. McKenna, 350 S.W.2d 333,335 (Tex. 1961); Abbott v. Pollock,
lRequest Letter at 1 (available at http://www.texasattomeygeneral.gov).
The Honorable Joseph D. Brown - Page 2 (GA-0778)
946 S.W.2d 513,517 (Tex. App.-Austin 1997, pet. denied); Tex. Att'y Gen. Op. No. GA-0332
(2005) at 3. They hold "virtually absolute sway over the particular tasks or areas of responsibility
entrusted to [them] by state statute." Hootenv. Enriquez, 863 S.W.2d522, 531 (Tex. App.-EIPaso
1993, no writ) (quoting Familias Unidas v. Briscoe, 619 F.2d 391, 404 (5th Cir. 1980)). Prior
opinions have concluded that the sphere of authority of an elected county officer, such as the county
clerk, includes the "implied authority to set the working conditions for his or her own employees."
Tex. Att'y Gen. Op. No. JC-0131 (1999) at 2. The Legislature has vested the county clerk, and not
the commissioners court, with the exclusive authority to dictate to his or her deputies the
responsibility of carrying out the clerk's constitutional and statutory duties. See Hooten, 863 S.W.2d
at 532. See also TEx. CONST. art. V, § 20 (creati:pg the county clerk's office); TEx. Loc. GOV'T
CODEANN. § 82.005(a), (c) (Vernon 2008) (providing that a deputy clerk appointed by the county
clerk "acts in the name of the county clerk and may perform all official acts that the county clerk may
perform"), TEx. Loc. GOV'T CODE ANN. ch. 151, subch. A (Vernon 2008) (providing that the
commissioners court will authorize the number of employees to be appointed by a district, county,
or precinct officer, but the court may not attempt to influence the appointment of any person to an
employee position).
This office has stated that a county officer may close his or her "office for part or all of one
or more days on account of bad weather, repairs, and the like" and may authorize employees "to be
paid for the time they were unable to work because of an office closure." Tex. Att'y Gen. Op. No.
JC-0131 (1999) at 2-3; see Tex. Att'y Gen. Op. Nos. GA-0303 (2005) (concluding that ajustice of
the peace was authorized to close his office for the official day of mourning honoring former
President Ronald Reagan and to allow his clerk to take the day oft); JC-0239 (2000) at 4 (concluding
that an elected county official may close the office and dismiss employees to provide them extra
holiday time); JC-0131 (1999) at 2 (concluding that in the absence of a statute specifically
authorizing the commissioners court to establish office hours for county officials and their
employees, each county official may set working conditions for his or her own employees). 2 We find
no court that has held otherwise. 3
The commissioners court's budgetary power over the expenses of elected county officers
does, however, create some tension with an elected county officer's sphere of authority. See TEx.
2Allowing employees to take time off must, of course, serve a public purpose within Texas Constitution article
III, section 52, which provides that the Legislature shall have no power to authorize any county to grant public money
to any individual. See TEx. CONST. art. III, § 52(a); see also Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4. Whether
a particular office closure serves a public purpose must be determined in the fIrst instance by the public official, whose
decision is subject to judicial review. See Tex. Att'y Gen. Op. No. JC-0239 (2000) at 4.
3A Texas court has stated that "in order to standardize and effectuate such matters as hours of work, vacations,
holidays, sick leave, compensation, etc., the legislature has seen fIt to place the responsibility of their implementation
with the Commissioners Court, as specifIed by the legislature. TEX. Loc. GOV'T CODE ANN. chs. 151-158 (Vernon
1988)." State v. Hardy, 769 S.W.2d 353,355 (Tex. App.-Houston [1st Dist.] 1989, no writ). The Hardy court also
said that a statutory grievance procedure available to deputy district clerks did not take away the district clerk's powers
to appoint, discharge and supervise his deputies. See id. Hardy does not address the question raised by this opinion
request.
The Honorable Joseph D. Brown - Page 3 (GA-0778)
Loc. GOV'T CODE ANN. § 152.011 (Vernon 2008) (authorizing commissioners court to set
compensation, expenses, and all other allowances for county and precinct officers and employees
paid wholly from county funds); Renken v. Harris County, 808 S.W.2d 222, 226 (Tex.
App.-Houston [14th Dist.] 1991, no writ) (stating that the commissioners court exercises budgetary
powers over the positions in the constable' s office). The commissioners court is charged with setting
the compensation, office and travel expenses, and other allowances for county and precinct officers
and employees paid wholly from county funds, including the compensation, office and travel
expenses of the county clerk. See TEx. Loc. GOV'T CODE ANN. § 152.011 (Vernon 2008); Tex.
Att'y Gen. Op. No. DM-492 (1998) at 8. Pursuant to Local Government Code section 152.011, the
commissioners court has implied authority to confer upon county officers and employees such
benefits as longevity pay, vacation leave, sick leave, and paid holidays, and to premise full salary and
benefits upon a forty-hour work week. See Tex. Att'y Gen. Op. Nos. JC-0239 (2000) at 5 (forty-hour
work week), JM-91O (1988) at 4 (vacation and sick leave), MW-438 (1982) at 2 (paid holidays);
Tex. Att'y Gen. LO-96-007, at 2 (longevity pay).
Funds for compensating county and precinct officers and employees are included in the
county budget, which for counties the size of Grayson County is prepared in accordance with Local
Government Code chapter 111, subchapter A. 4 See TEx. Loc. GOV'T CODE ANN. §§ 111.001
(Vernon 2008) (stating that subchapter A applies only to a county with a population of225,000 or
less that does not operate under subchapter C);5 1l1.003(a) (providing thatthe "county judge ... shall
prepare a budget to cover all proposed expenditures of the county government for the succeeding
fiscal year"). The commissioners court may amend the budget during the fiscal year to transfer an
amount budgeted for one item to another budgeted item. Id. § 111.010(d); see also Griffin v.
Birkman, 266 S.W.3d 189, 201 (Tex. App.-Austin 2008, pet. denied) (holding that the
commissioners court was authorized to transfer funding for emergency mental health services from
a constable's office to the sheriffs office during the fiscal year).6 Thus, as a general matter, the
commissioners court has authority to make a budget transfer that would result in the reduction of the
salary line item allocating compensation to a county officer's employees, subject to review for abuse
of discretion. 7 See Griffin, 266 S.W.3d at 196. However, a county commissioners court "may not,
by transferring funds from an elected county officer's budget, thereby prevent the officer from
4The population of Grayson County was 110,595 in 2000. See BUREAU OF THE CENSUS, U.S. DEP'T OF
COMMERCE, 2000 CENSUS OF POPULATION, available at http://quickfacts.census.gov/qfdlstates/48/48181.html (State and
County Quick Facts) (last visited Mar. 9, 2010).
5Chapter 111, subchapter B, applies only to a county with a population of more than 225,000 that does not
operate under subchapter C, and subchapter C provides ,an ¥ternate method of budget preparation in counties with a
popUlation of more than 125,000. See TEX. Loc. GOY'T CODE ANN. §§ 111.031, .061 (Vernon 2008).
6The county at issue in Grifjin was in the population group subject to Local Government Code sections
111.031-.045, butthe section addressed was virtually identical with section 111.010(d). See Grifjin, 266 S.W.3dat 194,
203.
7The commissioners court may set the county clerk's salary only during the budget adoption process. See TEx.
Loc. GOV'T CODE ANN. § 152.013(a) (Vernon 2008); Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5.
The Honorable Joseph D. Brown - Page 4 (GA-0778)
performing his or her required duties." Tex. Att'y Gen. Op. No. GA-0037 (2003) at 5. Further, "a
county commissioners court generally may not second-guess a county officer's use of county
employees to accomplish the officer's constitutional or statutory duties [or] the officer's
determination that dismissing county employees under his or her supervision ... serves a public
purpose or constitutes a legitimate use of official, work time." Tex. Att'y Gen. Op. No. JC-0239
(2000) at 5.
You have stated that the Grayson County Commissioners Court has refused to pay these
employees for the time that they did not work, and\you ask whether the Commissioners Court may
amend the budget during the fiscal year to accomplish this purpose. See Request Letter at 1. While
a commissioners court may amend the budget in midyear to make a transfer of funds that would
result in the reduction of the salary line item for county employees compensated under Local
Government Code section 152.011, it may not adopt such an amendment to recoup payment to
employees for the time period that the clerk dismissed them, because such a change would interfere
with an elected officer's authority to manage his or her office and supervise the employees. See Tex.
Att'y Gen. Op. No. JC-0131 (1999) at 5 (concluding that if a county officer closes her office for part
of a work day because of bad weather, repairs, and the like, the employees may be paid for that time
and the commissioners court may not reduce the employees ' pay). "If a county commissioners court
infers from a county officer's office closure or allocation of county resources that the elected county
officer does not require all of the full-time employees assigned to that office, the commissioners
court's remedy is to apply its budgetary authority to reallocate county resources" in the future. Tex.
Att'y Gen. Op. No. JC-0239 (2000) at 5. Based on the information provided to us, we believe that
a court would likely conclude that the Grayson County Commissioners Court may not transfer funds
to reduce the salary line item to deprive the clerk's employees of payment for the time period that
the clerk dismissed them due to a thunderstorm and power outage in the county courthouse, because
such a reduction would intrude upon the elected county clerk's sphere of authority.
The Honorable Joseph D. Brown - Page 5 (GA-0778)
SUMMARY
Based on the information provided to us, we believe that a
court would likely conclude that the Grayson County Commissioners
Court may not transfer funds to reduce the salary line item to deprive
the clerk's employees of payment for the time period that the clerk
dismissed them due to a thunderstorm and power outage in the county
courthouse, because such a reduction would intrude upon the elected
county clerk's sphere of authority.
Attorney General of Texas
ANDREW WEBER
First Assistant Attorney General
JONATHAN K. FRELS
Deputy Attorney General for Legal Counsel
NANCY S. FULLER
Chair, Opinion Committee
Susan L. Garrison
Assistant Attorney General, Opinion Committee